People v. Barnes
| Decision Date | 18 November 1996 |
| Citation | 170 Misc.2d 979,653 N.Y.S.2d 818 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Lisa BARNES et al., Defendants. |
| Court | New York City Court |
William V. Grady, District Attorney of Dutchess County, Poughkeepsie (Kristine M. Hawlk, of counsel), for plaintiff.
David Goodman, Public Defender of Dutchess County, Poughkeepsie (Nancy Garo, of counsel), for defendants.
Defense counsel has filed one consolidated motion seeking the dismissal of criminal solicitation charges filed against numerous defendants.
The People have responded with a single answering affidavit. As set out in more detail below, the nature of the charges filed against each defendant, and the argument interposed by defense counsel as to each defendant, renders the motion papers and this Decision & Order applicable to all similarly situated defendants.
Defendants have all been charged with Criminal Solicitation in violation of Penal Law Sections 100.00 et seq. The facts as alleged for all cases are nearly identical: the defendants are each charged with having solicited an undercover New York State Trooper to engage in conduct constituting the crime of criminal sale of a controlled substance (or marihuana) by approaching the undercover Trooper who the defendant believed to be a dealer in illegal narcotics (or marihuana) and requesting, by various words, said illegal substance.
The defendants' argument rests squarely on the language of the Criminal Solicitation Exemption statute, Penal Law Section 100.20, which states:
A person is not guilty of criminal solicitation when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the crime solicited. When under such circumstances the solicitation constitutes an offense other than criminal solicitation which is related to but separate from the crime solicited, the actor is guilty of such related and separate offense only and not of criminal solicitation.
It is the defendants' contention that "solicitation" is necessarily incidental to the crime of criminal sale. Therefore, the defendants assert that they cannot be guilty of criminal solicitation as a matter of law due to the exemption of Penal Law Section 100.20, and that the charges must be dismissed.
In support of their position, the defendants cite a Court of Appeals case [People v. Manini, 79 N.Y.2d 561, 584 N.Y.S.2d 282, 594 N.E.2d 563 (1992) ], two 1995 City of Rochester cases which interpret or comment upon the Manini case [People v. Agnello, 165 Misc.2d 855, 630 N.Y.S.2d 614 (City Court 1995) and People v. Benitez, 167 Misc.2d 99, 637 N.Y.S.2d 590 (City Court 1995) ], and a hypothetical example taken from practice commentaries which purports to demonstrate how the exemption is to be applied.
The higher courts of New York have not directly addressed the issue of whether Penal Law Section 100.20 applies to cases where the defendant is charged with soliciting an undercover officer to sell him drugs. The Court of Appeals has had occasion, however, to explain a similarly worded exemption statute, Penal Law Section 20.10, which exempts a defendant in certain circumstances from liability for the conduct of another person. People v. Manini, supra at 561, 584 N.Y.S.2d 282, 594 N.E.2d 563. Penal Law Section 20.10 is similar in many respects to the exemption statute for criminal solicitation, most particularly in its use of the term "necessarily incidental". Indeed, the defendants assert that "virtually the same issue" that is present in the instant cases was addressed in Manini.
Penal Law Section 20.10, as discussed in Manini, states in pertinent part as follows:
A person is not criminally liable for conduct of another person constituting an offense when his own conduct, though causing or aiding the commission of such offense, is of a kind that is necessarily incidental thereto. If such conduct constitutes a related but separate offense upon the part of the actor, he is liable for that offense only and not for the conduct or offense committed by the other person.
The Manini court, in explaining how and when this exemption statute applies, stated that if the conduct of a person sought to be held liable as an accomplice constitutes "a related but separate offense, that person is liable only for his/her own offense...." Id. at 569, 584 N.Y.S.2d 282, 594 N.E.2d 563. The court went on to say, at page 570, 584 N.Y.S.2d 282, 594 N.E.2d 563:
The underlying purpose of the statute [PL Sec. 20.10] appears to have been to prevent In Manini, the defendant (a seller of drugs) and two other persons (the buyers) engaged in "a reciprocal transaction" which resulted in the buyers taking possession of drugs. The People attempted to hold the drug seller accessorily liable for the drug possession chargeable against the drug buyers. Id. at 572, 584 N.Y.S.2d 282, 594 N.E.2d 563. In that case, the Manini court determined that the exemption of Penal Law Section 20.10 applied, but it was the reciprocal nature of the transaction, and the fact that the defendant was indeed charged with another crime (his own possession and sale), that were critical to the Court of Appeals' analysis.
unnecessary prosecutions in cases where "ordinarily each culprit in such a reciprocal situation [would be] prosecuted for his particular offense" such that there would be "no need for torturing [the putative accessory's] conduct into accessorial guilt of the correlative offense." (Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law Section 20.10, at 57 [1975] ).
Although the Manini court pointed out that "in the vast majority of cases, a 'sale' is 'necessarily incidental' to the possession of narcotics", the Court also noted that "in the typical drug transaction scenario, the seller will continue to be liable for his own actual possession and sale...." Id. at 571, 584 N.Y.S.2d 282, 594 N.E.2d 563. The Court went on to conclude, at page 571, 584 N.Y.S.2d 282, 594 N.E.2d 563 (emphasis added), that:
We do not perceive any reason ... why, where a purchaser obtains drugs from a seller, section 20.10 should not ... preclude prosecution of the seller as an accessory to the resulting possession by the purchaser, especially since he remains liable for his own conduct: his possession and sale.
Thus, Manini clearly stands for the proposition that the exemption of Penal Law Section 20.10 must apply where a defendant is liable for "a related but separate offense", and that applying the exemption where there is "a related but separate offense" accomplishes "the underlying purpose of the statute." Manini does not, however, suggest or require that the exemption must apply in cases where no separate related offense exists.
In contrast to Manini, each of the instant cases involves a defendant who is alleged to have tried to obtain an illegal substance from an undercover officer in what is commonly referred to as a "reverse sting" operation. Such operations (although a common police tactic) do not constitute the kind of "typical" drug transactions considered in Manini in that, where undercover officers are engaged in a reverse sting operation, no "reciprocal transaction" occurs. That is, the police officers do not actually sell drugs to the defendants, and therefore the defendants cannot be charged with possession of drugs. Thus, Manini does not directly apply to the facts of the cases at bar. 1
The second sentence of Penal Law Section 100.20 could be interpreted as suggesting that the exemption should apply only in cases where the alleged solicitation "constitutes an offense other than" the solicitation itself, and that in such circumstance "the actor is guilty of such related and separate offense only and not of criminal solicitation." In other words, the exemption could be read to apply only where there is a separate related offense. In the opinion of this Court, such an interpretation fits well within the holding of Manini. Indeed, Penal Law Section 100.20 has been interpreted in precisely this way by the Criminal Court of the City of New York. See People v. Spencer, 66 Misc.2d 658, 322 N.Y.S.2d 266 (Crim.Ct. City of NY 1971).
In Spencer, the defendant was alleged to have offered a child money to commit sodomy. The defendant was charged with attempted sodomy and endangering the welfare of a child, but the Court also considered whether the defendant could be charged with criminal solicitation in violation of Penal Law Section 100.05, and whether the exemption statute of Penal Law Section 100.20 should apply to bar such a charge. As stated in Spencer, at page 663, 322 N.Y.S.2d 266:
We now come to the question of whether the alleged conduct of the defendant ... also comprised criminal solicitation in the second degree.... The court holds that the solicitation is a separate, additional and not alternative offense, independent of and not necessarily incidental to the commission of the crime solicited, so as to escape the exempting effects of section 100.20 of the Penal Law.
More specifically, the Spencer Court went on to say, at pages 663-664, 322 N.Y.S.2d 266:
By its very language section 100.20 implies that the solicitation bore fruit in the form of a completed crime. Unless this is the correct interpretation of the language of the statute, an unsuccessful effort to commit a crime falling short of an attempt may escape the condemnation of the law.
Defendants' own argument in part supports this point, i.e., that the exemption should apply only where there is a separate related offense. In this regard, the defense refers to the following example taken from...
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People v. Allen
...to apply only in circumstances where there exists a related but separately chargeable criminal offense (see, People v. Barnes, 170 Misc.2d 979, 653 N.Y.S.2d 818 [interpreting People v. Manini, 79 N.Y.2d 561, 584 N.Y.S.2d 282, 594 N.E.2d 563]; People v. Spencer, 66 Misc.2d 658, 322 N.Y.S.2d ......